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⁴ See, e.g., Hofstadter, Richard, The Age of Reform From Bryan to F.D.R. (New York: Alfred A. Knopf, 1955), 131–269Google Scholar; Buenker, John D., Urban Liberalism and Progressive Reform (New York: Scribner, 1973)Google Scholar; Blum, John Morton, The Republican Roosevelt, 2d ed. (Cambridge, MA: Harvard University Press, 1977)Google Scholar; McGerr, Michael, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America (New York: Oxford University Press, 2003)Google Scholar.

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¹⁸ Virginia Constitution of 1776, sec.1.

¹⁹ Dellinger, Walter, “The Indivisibility of Economic Rights and Personal Liberty,” Cato Supreme Court Review 2003–2004: 19Google Scholar (“Economic rights, property rights, and personal rights have been joined appropriately, since the time of the founding.”).

²⁰ In 1890, Justice Stephen J. Field declared: “It should never be forgotten that protection to property and to persons cannot be separated. Where property is insecure, the rights of persons are unsafe. Protection to one goes with protection to the other; and there can be neither prosperity nor progress where either is uncertain.” “Centenary of the Supreme Court,” 134 U.S. 729, 745 (1890)Google Scholar.

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²⁶ Under Rousseau's theory of the social contract individuals must surrender all rights to the community and abandon ideas of natural liberty. The community acts “under the supreme direction of the general will” for purposes of “the common good.” Rousseau did not scruple to embrace authoritarian means to achieve his goals. “In order, therefore,” he wrote, “that the social compact may not be a meaningless formality, it includes the tacit agreement, which alone can give force to the rest, that anyone who refuses to obey the general will shall be forced to do so by the whole body; which means nothing more or less than that he will be forced to be free.” Watkins, Frederick, ed., Rousseau—Political Writings (New York: Thomas Nelson and Sons, 1953)Google Scholar.

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³² Croly, The Promise of American Life, supra note 2, at 249–50.

³³ Ibid.

³⁴ In a series of writings Walter Rauschenbusch assailed capitalist society, urged a more egalitarian distribution of wealth, attacked economic competition, and called for public ownership of the means of production. See, e.g., Christianity and the Social Crisis (New York: Macmillan, 1907; reprint Louisville, KY: Westminster/John Knox Press, 1991)Google Scholar Rauschenbusch complained: “Our industrial individualism neutralizes the social consciousness created by Christianity.” Ibid. at 388.

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³⁸ Gunther, Gerald, Learned Hand: The Man and the Judge (New York: Albert A. Knopf, 1994), 230Google Scholar (commenting that 1912 Progressive Party convention, which nominated Theodore Roosevelt for president, “had more the air of a religious crusade than a political gathering”); Gorrell, The Age of Social Responsibility, supra note 35, at 182–89 (discussing the number of Social Gospel advocates who actively supported the Progressive Party in 1912).

³⁹ Lears, Rebirth of A Nation, supra note 5, at 352–53 (pointing out that when Progressive ideas reappeared in the 1930s they were presented in secular terms and characterized as “liberal” rather than Progressive). See also Rotunda, Ronald D., The Politics of Language: Liberalism as Word and Symbol (Iowa City: University of Iowa Press, 1986), 14–17, 38–51Google Scholar (discussing how the term “liberal” replaced the older term “progressive” in the 1930s).

⁴⁰ Gladden, William, “Christian Socialism,” Minutes of the National Council of the Congregational Churches of the United States, October 9–14, 1889 (Boston: Congregational Sunday School and Publishing Company, 1889), 338Google Scholar.

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⁴⁵ Ibid., at 304.

⁴⁶ Ibid. See Forcey, Charles, The Crossroads of Liberalism: Croly, Weyl, Lippmann, and the Progressive Era, 1900–1925 (New York: Oxford University Press, 1961), 40–41Google Scholar (stressing Croly's virtual obsession with executive power to effectuate reform).

⁴⁷ Croly, The Promise of American Life, supra note 2, at 275.

⁴⁸ Ibid., at 359.

⁴⁹ Croly, Progressive Democracy, supra note 44, at 347–77. Croly revealingly contrasted the administrative process and traditional courts: “The administrative court represents a social policy based on a collective social ideal. The common-law judge represents a social policy founded on the protection of individual rights.” Ibid., at 368.

⁵⁰ Ibid. at 370.

⁵¹ Higgs, Robert, Crisis and Leviathan: Critical Episodes in the Growth of American Government (New York: Oxford University Press, 1987), 112Google Scholar. (“Certainly the Progressive Faith in the efficacy of placing ‘experts’ in positions of authority—social engineers to solve social problems—was naïve at best”.)

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⁵⁵ Gould, Lewis L., Four Hats In The Ring: The 1912 Election and the Birth of Modern American Politics (Lawrence, Kan.University Press of Kansas, 2008), 182Google Scholar. See also Kornbluh, Mark Lawrence, Why America Stopped Voting: The Decline of Participatory Democracy and the Emergence of Modern American Politics (New York: New York University Press, 2000), 138–60Google Scholar (discussing impact of administrative governance on participation in politics).

⁵⁶ Stettner, Edward A., Shaping Modern Liberalism: Herbert Croly and Progressive Thought (Lawrence, KS: University Press of Kansas, 1993), 166Google Scholar.

⁵⁷ Ibid. at 59–60 (stressing Croly's confidence in a trained bureaucracy).

⁵⁸ Croly, Progressive Democracy, supra note 44, at 314.

⁵⁹ Croly, The Promise of American Life, supra note 2, at 209.

⁶⁰ Ibid. at 209–10. Croly declared that “under a legal system which holds private property sacred there may be equal rights, but there cannot possibly be any equal opportunities for exercising such rights.” Ibid. at 181.

⁶¹ Diggins, John P., Mussolini and Fascism: The View from America (Princeton: Princeton University Press, 1972), 204–5, 228–31Google Scholar. Croly, of course, was not the only Progressive intellectual to initially look with favor upon Italian fascism. But see Stettner, Shaping Modern Liberalism, supra note 56, at 155–57 (disputing contention that Croly was sympathetic to fascism).

⁶² Rader, Benjamin G., The Academic Mind and Reform: The Influence of Richard T. Ely in American Life (Lexington, KY: University of Kentucky Press, 1966), 1–66Google Scholar.

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⁶⁴ Quandt, “Religion and Social Thought,” supra note 63, at 403.

⁶⁵ Ely, Richard T., Property and Contract in Their Relations to the Distribution of Wealth (New York: Macmillan Company, 1914, 2 vols.)Google Scholar, vol. I at 165–90 (property), II at 615–18 (contract).

⁶⁶ Rader, The Academic Mind and Reform, supra note 62, at 103.

⁶⁷ Ely, Richard T., Socialism and Social Reform (New York: Thomas Y. Crowell & Co., 1894), 253–54Google Scholar; Rader, The Academic Mind and Reform, supra note 62, at 102–3.

⁶⁸ Rader, The Academic Mind and Reform, supra note 62, at 104–5.

⁶⁹ Ibid., at 235.

⁷⁰ Thies, Clifford F. and Pecquet, Gary M., “The Shaping of a Future President's Economic Thought: Richard T. Ely and Woodrow Wilson at ‘The Hopkins’,” The Independent Review 15 (2010): 267–75Google Scholar.

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⁷⁴ Ibid., at 623.

⁷⁵ Ibid., at 631.

⁷⁶ Ibid., at 632.

⁷⁷ Wilson, The New Freedom, supra note 72, at 284.

⁷⁸ Woodrow Wilson to Hermann Eduard von Holst, June 29, 1893, in Link, Arthur S., ed. The Papers of Woodrow Wilson, vol. 8 (Princeton: Princeton University Press, 1970), 271Google Scholar.

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⁸⁰ Ibid., at 39.

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⁸⁴ Mayer, David N., Liberty of Contract: Rediscovering a Lost Constitutional Right (Washington, DC: Cato Institute, 2011) 6Google Scholar.

⁸⁵ Ibid. at 115 (pointing out that judicial invocation of laissez-faire principles “would have resulted in the overturning of literally hundreds of laws that the Court upheld as valid exercises of the police power”).

⁸⁶ Ely, James W. Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights, 3d ed. (New York: Oxford University Press, 2008), 108–9Google Scholar.

⁸⁷ 198 U.S. 45 (1905). For assessments of this important case, see David E. Bernstein, Rehabilitating Lochner, supra note 8 ; Strauss, David A.,” Why Was Lochner Wrong?, University of Chicago Law Review 70 (2003): 373CrossRefGoogle Scholar; David N. Mayer, Liberty of Contract, supra note 84, at 70–76.

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⁸⁹ Ross, William G., A Muted Fury: Populists, Progressives, and Labor Unions Confront the Supreme Court, 1890–1937 (Princeton: Princeton University Press, 1994), 49–69Google Scholar (discussing Progressive denunciation of judicial review as a usurpation of power).

⁹⁰ Ibid., at 110–29.

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⁹⁶ Pound's vigorous assault on the liberty of contract doctrine is quite curious. In fact, the doctrine was rarely invoked by the Supreme Court. Alexander, Gregory S., “The Limits of Freedom of Contract in the Age of Laissez-Faire Constitutionalism,” in Buckley, Francis H., ed., The Fall and Rise of Freedom of Contract (Durham, N.C.: Duke University, 1999)Google Scholar (“… even during the period between 1885 and 1930, the supposed height of laissez-faire constitutionalism, the courts, federal and state, did not uniformly sustain the liberty of contract principle.”); Hall, Kermit L. and Karsten, Peter, The Magic Mirror: Law in American History, 2d ed. (New York: Oxford University Press, 2009), 264Google Scholar (“The Lochner decision was in many ways an aberration with limited impact.”). This raises a serious question of whether Pound was simply tilting at windmills.

⁹⁷ Pound, Roscoe, “Mechanical Jurisprudence,” Columbia Law Review 8 (1908): 616CrossRefGoogle Scholar.

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⁹⁹ Consider the jurisprudence of Justice Rufus W. Peckham, the author the majority opinion in Lochner. See Ely, James W. Jr, “Rufus W. Peckham and Economic Liberty,” Vanderbilt Law Review 62 (2009): 637Google Scholar (“Even a glance at Peckham's opinions makes it evident that he was not engaged in abstract deduction from legal principles and precedents. Instead, Peckham championed what he regarded as socially desirable outcomes in defense of property rights and contractual freedom. Peckham cannot fairly be described as a legal formalist.”).

¹⁰⁰ Ely, James W. Jr., The Chief Justiceship of Melville W. Fuller, 1888–1910 (Columbia, SC: University of South Carolina Press, 1995), 73–74, 83–149Google Scholar.

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¹⁰⁸ Learned Hand to Van Vechten Veeder, December 11, 1913, as quoted in Gunther, Gerald, Learned Hand: The Man and the Judge (New York: Alfred A. Knopf, 1994), 211Google Scholar.

¹⁰⁹ Beard, Politics, supra note 25, at 29.

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¹¹¹ Bernstein, Rehabilitating Lochner, supra note 8, at 41 (“… the Progressive legal elites' support for ‘sociological jurisprudence’ often masked a political agenda that favored a significant increase in government involvement in American economic and social life”).

¹¹² Horwitz, Morton J., The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 7Google Scholar: (“Although in every other field of American history, Progressive historiography, premised on a conflict between the “people” and the “interests” has been overthrown as simplistic, in the constitutional history of the Lochner era it has continued to be the standard mode of explanation.”)

¹¹³ Ibid.

¹¹⁴ Brandeis, Louis D., “The Living Law,” Illinois Law Review 10 (1916): 464Google Scholar.

¹¹⁵ In addition to Lochner, Brandeis singled out Ives v. South Buffalo Railway Co., 201 N.Y. 271 (1911) (invalidating New York's workers' compensation law) and Adair v. United States, 208 U.S. 161 (1908) (striking down on liberty of contract doctrine a congressional measure outlawing so-called yellow dog contacts). These were favorite targets of the Progressives.

¹¹⁶ Keedy, Edwin R., “The Decline of Traditionalism and Individualism,” University of Pennsylvania Law Review 65 (1916): 772Google Scholar.

¹¹⁷ House, Edward Mandell, Philip Dru Administrator: A Story of Tomorrow 1920–1935 (New York: B. W. Huebach, 1912, reprinted Memphis, Tenn.: General Books, 2010)Google Scholar. Philip Dru has received surprisingly little attention from scholars. For exceptions, see Lears, Rebirth of A Nation, supra note 5, at 330–31; Bloomfield, Maxwell, “Constitutional Ideology and Progressive Fiction,” Journal of American Culture 18 (1995): 3–4Google Scholar. See also a review of this work by Lippman, Walter, “America's Future,” New York Times, December 8, 1912Google Scholar.

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¹²¹ Root, Elihu, Experiments in Government and the Essentials of the Constitution (Princeton: Princeton University Press, (1913), 3Google Scholar.

¹²² Ibid. at 43, 44, 53, 62–63, 75.

¹²³ Hofstadter, The Age of Reform, supra note 4, at 273 (“Participation in the war put an end to the Progressive movement.”); McGerr, A Fierce Discontent, supra note 4, at 299–313.

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